Code Blue

Police work in an unpredictable, sometimes violent, sometimes deadly environment. The potential danger of their workplace and their authority to use force to overcome resistance make it unsurprising that police actions can have brutal, even fatal, consequences--sometimes for innocent people, as Amadou Diallo's family knows all too well. It's also not surprising that, to cope with such violence and danger, police have developed a very close-knit culture that has its own set of norms. A policeman understands that his fellow officers might, in the heat of the moment, do things that they wouldn't want brought to light later on. Maybe they administered a "tune-up" to teach compliance to a suspect. Or maybe they visited a "beat wife," or prostitute, while on duty. A cop learns to back up the stories colleagues tell to superiors and investigators; in turn, he is confident colleagues will back him up.

This makes it very hard to investigate and prosecute cases of police misconduct. It may even encourage misconduct. Officers in the New York City Police Department's 70th precinct did not protest when they saw Abner Louima being marched around the station house with his pants down to his ankles. Officer Justin Volpe proudly showed off the results of his sadistic anal assault. He waved a broken broomstick stained with blood and feces around his fellow officers to see, even bragging to Sergeant Kenneth Wernick that "I took a man down tonight." Yet no police officer came forward that night to report Volpe. Why not?

And if they did tell on them, just say if a cop decided to tell on me, his career's ruined. He's going to be labeled as a rat. So if he's got 15 more years to go on the job, he's going to be miserable because it follows you wherever you go. And he could be in a precinct--he's going to have nobody to work with. And chances are if it comes down to it, they're going to let him get hurt.

This is the famous "blue wall of silence," and it helps explain how it is that to the sodomizing of Abner Louima, the 56 blows inflicted upon Rodney King, and the perjury of Detective Mark Fuhrman we must now add both the growing corruption scandal in the Los Angeles Police Department, the 41 bullets pumped into Amadou Diallo, and the conspiracy to obstruct justice of three officers found guilty of making up a story to cover up the role of one of them--Charles Schwarz--in the bathroom attack on Abner Louima. The LAPD corruption scandal--which includes allegations of shooting, beating, stealing and selling drugs, evidence planting, false arrests, and perjury--was fueled by the testimony of ex-LAPD antigang Officer Rafael Perez, who is cooperating with authorities to obtain a lighter sentence for his theft of cocaine placed in evidence. Since September 1999, when the scandal broke, more than 20 police officers have been relieved of duty, forced to quit, or fired. Dozens of criminal convictions have been overturned because of perjured testimony, and every day seems to bring new and increasingly damaging revelations. And while police in the Diallo trial were acquitted by a responsible jury, the fact that the defendants didn't come forward with their stories until the trial led some critics to suspect that the cops had used this time to construct a narrative relieving themselves of criminal responsibility. After all, the only witness who could contradict their account was no longer alive.

In its colloquial sense, the term "police brutality" suggests that police are deliberately teaching the recipient a lesson of compliance not sanctioned by any legitimate legal authority. Except in instances like Louima's, where the victim's injuries are difficult to cover up, or like Rodney King's, when a bystander videotapes the beating, cases of police brutality in which the victim is a drug dealer, or is on parole or probation, rarely come to public attention. Some police consider the administration of a bit of vigilante justice to be nobody's business but their own. Had the police beaten Louima in a patrol car and nowhere else, the abuse would likely have passed unnoticed.

Even police who do end up accused of assaulting persons of low character, drug dealers, or ex-cons are hard to convict. For one thing, "police brutality" has no real meaning in court; it is a newspaper term, not a legal one. It is understood that police are trained and authorized to use force, even deadly force, when it is needed to arrest or apprehend someone who has probably committed a crime. Also, New York City has a "48 hour rule," negotiated by the Policeman's Benevolent Association (PBA), which gives police 48 hours to consult with PBA representatives before higher-ranking officials can talk to them. After the Diallo shooting, Internal Affairs investigators could not separate the four officers and immediately ask each of them what happened, which would have provided the best evidence. Instead, the police had ample time before the trial to consult with their lawyers and to develop a compelling story. Finally, judges and juries are reluctant to send otherwise seemingly unblemished police to prison, especially for inflicting punishment on "lowlifes." In the King case, the officers tried to persuade a Simi Valley jury that 56 powerful strokes were necessary to apprehend King--and they were acquitted. (They were later retried in a federal court in Los Angeles, where King testified, and they were convicted of violating King's civil rights.)

When specific charges are brought in police brutality cases, they are usually grounded in a bright legal line police are never supposed to cross: Once police have a suspect safely in custody, they are not allowed to use retributive force, no matter how heinous the crime they believe the suspect to have committed. In the Louima case, Officer Volpe believed--mistakenly, as it turns out--that Louima had assaulted him. The standard street punishment for such disrespect is a beating. Volpe shoved a broomstick up Louima's rectum and then broke front teeth with the feces-laden end of the stick to teach him to respect and fear police. (Volpe, the rare police officer convicted of assault, is now serving time).

In the Diallo case, police argued that Diallo acted suspiciously, ignored their commands, and reached for a wallet that one of them thought was a gun--and that, consequently, they were justified in shooting to defend themselves. The claim that a suspect was "resisting"--in effect, the defense in the Diallo case--is the standard justification against accusations of brutality. (Police executives sometimes review the "resisting arrest" cases of police officers to determine whether a cop inclines toward administering vigilante justice.) But as the first King trial--and now, in a way, the Diallo trial--makes clear, the resisting-arrest defense often works for police.

As anyone who watches police movies knows, even "good cops" are presented with a real dilemma when they witness police misconduct. Police are caught between the imperatives of the blue wall of silence and police department rules compelling a cop who knows of police misconduct to notify Internal Affairs investigators immediately. If the officer promptly reports an incident, he's labeled a "rat" or a "cheese eater" by other cops. Thus police usually lapse into silence and talk about the misconduct of other cops only when pressured by Internal Affairs investigators or by threat of prosecution.

Clearly, the blue wall of silence can conceal (and possibly encourage) egregious violations of civil rights, not to mention less extreme incidents of unwarranted violence and abuse. But how do we break down the blue wall of silence without undermining necessary solidarity--a culture of "I'll watch your back and you watch mine" that often extends far beyond any literal line of fire--that is essential to police work? The first crack in the wall needs to be made by top police officials, prosecutors, and judges who have winked at and tolerated police perjury--"testalying"--for years.

The Official Corruption Unit

I have recently been studying the Official Corruption Unit (OCU) of Manhattan District Attorney Robert M. Morgenthau, an office that is authorized to investigate the corruption of any public official but concentrates mainly on police cases. It maintains a regular, sometimes rocky relationship with the Internal Affairs Bureau of the NYPD. In some instances William Burmeister, who until very recently was the OCU director, has felt that Internal Affairs moved too quickly to expose the names of officers being investigated, alerting other guilty cops to be on their guard. However honest and diligent Internal Affairs investigators might be, their organizational imperatives differ from the OCU's. While the NYPD's Internal Affairs Bureau wants to cut off scandals and their related publicity as quickly as possible, the district attorney's office, via the OCU, wants to see how far the corruption has spread, by turning crooked police into undercovers who wear "wires" to collect evidence to be used in courtroom prosecutions. Hence the tension: Do you allow the misconduct to continue in order to catch all the perpetrators while subjecting the public to the ongoing crimes of crooked and brutal police? Or do you arrest and charge quickly, understanding that other bad cops will be alerted to the investigation and get away?

The OCU was founded in 1991 when Governor Mario Cuomo disbanded New York State's Special Prosecutor's Office and redistributed its authority to local district attorneys. Morgenthau, a Manhattan icon, brought in Burmeister, a former assistant district attorney, to head the new unit. Burmeister's past prosecutorial positions in the Manhattan District Attorney's Office and the New York State Organized Crime Task Force didn't prepare him for the levels of corruption, brutality, and perjury he discovered in the NYPD. His awakening came when he was investigating Manhattan's 30th precinct, located in Washington Heights, a heavy drug-dealing neighborhood in north Manhattan. Burmeister says that his investigation (which eventually led to the Mollen Commission Report) was prompted by a conversation he had with a defense attorney who, while acknowledging that his client was guilty, revealed that his client had had in his possession at the time of arrest three kilos of cocaine, not two as the police had charged. The police, the lawyer claimed, had stolen one kilo. Burmeister investigated; the lawyer was right.

OCU investigations are often secret, employing tactics--stings, wires, wiretaps--familiar to organized-crime investigators. Burmeister showed me a "sting" video on which two officers stop a Dominican-looking driver--actually an undercover agent for the OCU--who has a brown paper bag on the front seat, containing several thousand dollars in marked money. One of the officers discovers the bag and then stuffs money into his pants. The thief was later apprehended and agreed to wear a wire for the OCU to help root out corruption in exchange for leniency.

To maintain the secrecy of the investigations, Burmeister asked Morgenthau to move the OCU's team of seven prosecutors, six investigators, several paralegals, and a receptionist out of the main Manhattan Criminal Courts building where police routinely meet with prosecutors. (A cop who agrees to wear a wire doesn't care to be seen by other cops, and the investigators don't want him to be seen.) The office is now located in a remodeled Soho loft, with no name on the downstairs buzzer, on a street featuring fashionable clothing stores. Burmeister was so concerned with secrecy that he usually brought a sandwich to lunch with staff in his office, fearing that a conversation in a neighborhood restaurant might be overheard by crooked police or their friends.

The Case of Norman Batista

The most challenging cases to prosecute are those that fall into the category of retributive beatings, or tune-ups, administered under cover of "the suspect was resisting arrest." I have been following such a case prosecuted by the OCU against officers of the Manhattan North Drug Initiative (MNDI), a highly touted NYPD effort to rid Washington Heights of drug trafficking. The incident occurred less than a month after officers from Brooklyn's 70th precinct were arrested and charged with brutalizing Abner Louima. Though the MNDI case received far less publicity than the sensational misconduct in the Louima case, the MNDI case is far more typical.

The facts are roughly as follows: A drug dealer, Jose Polanco, sold illegal drugs out of an apartment on West 172nd Street. Five officers, two of whom were supervisors, had obtained a warrant to search the apartment. One of the officers, a sergeant, testified that it took several minutes to gain entry into the well-barricaded apartment. Polanco, who was given immunity to testify, said he had flushed all his drugs down the toilet when he'd heard the police pounding on the door. By doing so, he had undercut any criminal case that might be made against him or the buyer, since neither had any drugs in their possession and the police had not witnessed a sale. (After searching the apartment, the police could find only a minute amount of cocaine residue on the tip of a screwdriver.)

Polanco testified that he and the drug buyer, a middle-aged Dominican man who had moved to New York 19 years earlier and had worked for 16 years as a busboy, were ordered to their knees and searched. Then, he testified, the police began to beat them and told them to shut up and take the beating and not to scream. Polanco, an experienced drug seller with the sturdy build of a defensive back, testified that he had complied. He also testified that he could hear loud cries of pain as the buyer, Norman Batista, was further beaten. Polanco and Batista curled into fetal positions to protect themselves; for this reason, neither could later on identify which officers had administered the blows and the kicks. After being taken into custody, Batista experienced severe pain for several hours, and the police offered to cut him loose. He refused their offer and was eventually transported to an emergency room at Metropolitan Hospital. The emergency room physician found that Batista had seven broken ribs, four on one side and three on the other, where he had been kicked while lying on the floor. Batista spent the next six days in the hospital with additional injuries to his chest, sternum, cheek, testicles, and knees.

The doctor was shocked by Batista's condition. He also didn't believe that Batista had resisted arrest--no charges were ever filed--and alerted a friend who was an assistant DA in the Manhattan District Attorney's Office. The case was assigned to Burmeister's OCU because of the unit's experience in prosecuting police. Two officers, Detective Olga Vazquez and Officer Richard Thompson, who had been on the force seven and five years, respectively, were charged with first-degree assault, which carries a potential sentence of 25 years. Vazquez and Thompson were tried together and waived a jury trial, as defendants are permitted to do in New York state court but not in federal court. (In the unlikely event that there should be a federal civil rights case against the officers who shot Diallo, it will be tried by a jury drawn from the Bronx and Manhattan.) Police usually waive a jury trial in New York City where jurors are likely to be people of color and where they believe judges will be sympathetic to police officers. (Had the officers in the Diallo case been tried in the Bronx, the judge would have been a black woman not known for her sympathy to police. Since, as defendants, they were entitled to a trial by jury, they asked for a change of venue to Albany.)

The defense attorneys for Vazquez and Thompson--one of whom was Marvin Kornberg, a veteran lawyer who has defended many police officers, including Justin Volpe-- argued in summation that even though five officers were present, none of them saw which officer or officers did the beating--and that therefore there was no compelling eyewitness testimony to prove assault. The defense attorneys argued that without eyewitnesses, the state had not met the burden of proof; besides, they argued, it doesn't make sense to send good police officers to prison when the alleged victim is a person who buys drugs.

Since no police came forward to testify, Assistant District Attorney Diane Kiesel, who was trying the case (and who is now a state judge), argued that Batista's injuries proved that he had without doubt been criminally assaulted in that apartment. Even if the prosecution couldn't prove that these two police defendants had actually administered the beating, the police nevertheless had a duty to prevent the crime. Since they did not, the prosecution argued, they were accessories to a crime. But Judge Ronald Zweibel acquitted the police defendants, even though one or more of the officers must have inflicted the injuries, and one or more of them must have seen it happening. (Burmeister believes that Officer Catherine Mylott witnessed the beating. She has been charged with perjury and is still awaiting trial.)

On the day of the acquittal, approximately 75 off-duty police officers jammed into the courtroom. They applauded loudly and embraced each other with evident joy when the acquittal was announced. The blue wall of silence had been vindicated.

The Diallo shooting was clearly different. The case against the officers was weak from the start. If they had legitimately made a mistake--an argument they made persuasively at the trial--they were justified in using deadly force. The number of shots mattered little. As the defendants testified, officers are trained to shoot at the "center mass," the center of the chest. This is a polite way of saying that police are taught to shoot to kill, which is how they should be taught. Unless they are prepared to kill, they should never shoot. Only the Sundance Kid can shoot a gun out of someone's hand. (Of the 41 shots at Diallo, more than half of them missed.)

But the Diallo case highlights two additional issues. First, would the officers have mistaken a wallet for a gun if Diallo had been white? Imagine the outcry if four black cops had shot an unarmed white man in Howard Beach, Queens. Race was the elephant in the living room that nobody introduced at the Diallo trial, but it is a policing issue that public officials ignore at their peril, and it's not an easy one to remedy. Following the Louima affair, the mayor and police commissioner transferred white officers from the 70th precinct and replaced them with black officers who, ironically, are suing the city on grounds of improperly using race as a criterion for assignment. And as tensions grow between minority communities and the police, it is ever more difficult to recruit minorities into the NYPD--which, in turn, makes it harder to answer critics who call for more minorities in policing.

Something like the Diallo shooting was likely to happen eventually, as a result of New York's aggressive approach to street policing. The Street Crimes Unit was seen by the mayor and Commissioner Howard Safir as the driving force behind the city's crime reduction, reportedly stopping and frisking 27,061 people in 1998 and making 4,647 arrests. (These figures are from a study critical of the NYPD by Attorney General Elliot Spitzer, which acknowledges that not all stops are actually reported.) Most of these stops are in high-crime, heavily minority areas of the city, which means that enormous numbers of innocent young black men--like Diallo--are subject to being stopped, questioned, and frisked. Moreover, many of the actual arrests are for minor offenses, such as drinking beer in the street, resulting in a critical overloading of the criminal courts in New York City. Even if the Diallo shooting was legally justifiable, it nevertheless raised serious questions about the policies and training of the NYPD, some of which have been remedied.

But of the Diallo, Louima, and Batista cases, the Batista case is most typical. It may also be the most troubling since it reflects a "culture war" between those who believe it's okay to punish the enemy, without regard to the Constitution, and those who believe police should play by the rules of law and procedure, even when that can make securing criminal convictions more difficult. As I watched the trial, I began to see the police and the judge on one side, and the emergency room doctor and the prosecutors on the other. The police who showed up to hear the verdict clearly supported their fellow officers. In their view, a drug dealer and a buyer had frustrated good cops by disposing of drugs. Since the criminals could not legally be punished, the police had administered a welldeserved beating, something the police watching from the gallery could easily imagine having done themselves. Judge Zweibel may have felt the same way, which is perhaps why he was not inclined to imprison police officers for this offense.

By contrast, the emergency room physician was appalled by the brutality of the beating and referred the case to the prosecutor's office. In the minds of the prosecutors, the beating had crossed way over the line of acceptably tough policing: This beating was a criminal assault, no matter that the victim had been buying drugs. The Batista case shows how difficult it can be to prosecute police, who rely on counsel funded by the PBA, who coordinate their defense. "Prosecuting police is like prosecuting the Mafia, with their lawyers," Burmeister told me.

The Batista case highlights something else as well. Teaching a lesson of compliance with a tune-up is most likely to occur in specialized units, like the MNDI police or the Los Angeles CRASH antigang unit. These "elite" units often compete to be the toughest or have the best arrest statistics. They are reminiscent of the elite, corrupt detectives memorialized in Prince of the City or the detectives for whom "the pad" was a way of life in Serpico. Like them, the CRASH cops and drug enforcers accused in the Batista case thought they could count on the code of silence to frustrate the efforts of even the best prosecutors. The crimes of the CRASH unit and those of New York City's "Dirty 30" detailed in the Mollen Commission Report show just how far police supervisors' tolerance of tune-ups and perjury can go.

In a sense, though, these scandals are our own fault, the outcome of the "war on drugs" and the "tough on crime" initiatives demanded by voters. In a war, the enemy is not entitled to constitutional protections and the rule of law. The police scandals in New York and Los Angeles are the most visible symbols of what warlike policing is all about. Investigators independent of police departments--like the OCU--are a necessary but insufficient counter to police lying, corruption, and brutality. Cops and politicians listen to the messages sent by the voters. If we, as voters, publicly support "wars" on drugs and crime, we shouldn't be surprised when soldiers occasionally mistreat the enemy, do a bit of looting on the side, and lie about what really happened. ¤